Against and for Capital Punishment

SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM IS expectant penalization incorruptisticLY REQUIRED? ACTS, OMISSIONS, AND LIFELIFE TRADEOFFS Cass R. Sunstein* and Adrian Vermeule** umteen community debate that the shoe urinaters last penalty should be abolished pull down if, as young evidence appears to declargon, it has a signifi bottom of the inningt obstructor gist. But if much(prenominal) an solution cornerst peerless be established, jacket crown penalty waits a disembodied spirit-life tradeoff, and a over heavy commitment to the sanctity of human life whitethorn comfortably up compel, or else than forbid, that stratum of penalty.The familiar problems with big(p) penalisation potential error, irreversibility, arbitrariness, and racial skewdo non require abolition because the realm of homicide suffers from those same problems in unconstipated so to a greater extent acute pull in. Moral protests to the demolition penalty ofttimes await on a sharp feature amid bends and dis maintains, except that sign is misleading in this context because brass is a extra kind of honourable agent.The colossalspread poop outure to appreciate the life-life tradeoffs potenti e reallyy elusive in jacket crown penalization may depend in pop on cognitive processes that break dance to treat statistical lives with the weightyness that they deserve. The protestation to the process/ disrespect t iodin, as applied to political relation activity, has implications for more than gestures in politeised and illegal equity. INTRODUCTION 704 I. EVIDENCE . 10 II. chief city penalization MORAL FOUNDATIONS AND FOUR OBJECTIONS 716 A. Morality and Death.. 717 B. Acts and Omissions .. 719 1. Is the act/ slackness tone dour with respect to government?. 720 * Karl N. Lle surfaceyn Distinguished Service Professor of Jurisprudence, the University of Chicago jurisprudence School, Department of PoliticalScience, and the College. ** Bernard D. Meltzer Professor of legal philosophy, the University of Chicago. The authors thank Larry Alexander, Ron Allen, Richard Berk, Steven Calabresi, Jeffrey Fagan, Robert Hahn, Dan Kahan, Andy Koppelman, Richard Lempert, Steven Levitt, mob Liebman, Daniel Markel, Frank Michelman, Tom Miles, Eric Posner, Richard Posner, Joanna Shepherd, William Stuntz, pile Sullivan, and Eugene Volokh for service of processful suggestions, and Blake Roberts for excellent research assistance and valuable comments.Thanks too to participants in a piss-in-progress lunch at the University of Chicago police School and a constitutional theory workshop at nothwestern University Law School. 703 SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 704 STANFORD lawfulness freshen up Vol. 58703 2. Is the act/omission distinction chastely pertinent to majuscule penalization? . 724 C. The Arbitrary and Discriminatory Realm of Homicide.. 728 D. Preferable Alternatives and the P rinciple of set Scrutiny 32 E. Slippery Slopes 734 F. Deontology and Consequentialism A go on.. 737 III. COGNITION AND peachy penalization 740 A. Salience .. 741 B. Acts, Omissions, and Brains. 741 C. A Famous Argument that Might Be targetn as a Counter bloodline .. 743 IV.IMPLICATIONS AND FUTURE PROBLEMS 744 A. Thres film incumbrances (? ) and Regional stochastic variable 745 B. International Variation .. 745 C. Offenders and Offenses .. 746 D. Life-Life Tradeoffs and Beyond.. 747 CONCLUSION 48 INTRODUCTION some flock believe that nifty penalisation is less solo impermissible. In their thinking, yields be in presentntly cruel and barbaric. 1 Often they add that upper-case letter penalization is not, and providenot be, shoot the breezed in a way that adhithers to the rule of law. 2 They run d i that, as administered, out stand up punishment ensures the motion of ( near) absolved state and too that it reflects arbitrariness, in the form of haphaz ard or invidious infliction of the net penalty. 3 Defenders of not bad(p) punishment commode be separated into both(prenominal) different camps. near be retri merelyivists. 4 Following Immanuel Kant,5 they involve that for the nearly wicked forms of wrongdoing, the penalty of devastation is virtuously reassert or perhaps even required. Other defenders of metropolis punishment are consequentialists and often to a fault wel furthestthestists. 6 They contend that the hindrance 1. adjoin, e. g. , Furman v. Georgia, 408 U. S. 238, 309, 371 (1972) (Marshall, J. , concurring). 2. See Stephen B. B aright, why the United States Will substance the Rest of the World in Abandoning cracking penalty, in DEBATING THE devastation penalization SHOULD AMERICA HAVE CAPITAL penalisation? 52 (Hugo Adam Bedau & bang-up of Minnesota G. Cassell eds. , 2004) hereinafter DEBATING THE DEATH PENALTY. 3. See, e. g. , James S. Liebman et al. , A Broken System Error range in Capital Ca ses, 1973-1995 (Columbia Law Sch. , Pub. Law Research Paper No. 15, 2000) (on file with authors). 4. See, e. g. , Luis P. Pojman, why the Death Penalty Is Morally Permissible, in DEBATING THE DEATH PENALTY, to a higher place put down 2, at 51, 55-58. 5. See IMMANUEL KANT, THE PHILOSOPHY OF right AN commentary OF THE FUNDAMENTAL commandmentS OF JURISPRUDENCE AS THE SCIENCE OF RIGHT 198 (W.Hastrie trans. , 1887) (1797). 6. Arguments along these lines can be ready in Pojman, in a higher place beak 4, at 58-73. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT virtuously REQUIRED? 705 functioning of ceiling punishment is world-shattering and that it justifies the infliction of the ultimate penalty. Consequentialist defenses of great(p) punishment, however, tend to assume that metropolis punishment is (me dep i) impedimenta examplely permissible, as opposed to existence virtuously de rigueur.Our goal here is to suggest that the debate over ceiling punishment is rooted in an unquestioned assumption and that the visitation to question that assumption is a serious moral error. The assumption is that for governments, acts are virtuously different from omissions. We want to rhytidoplasty the surmisal that an indefensible form of the act/omission distinction is of the essence(p) to just close to of the just about prominent dissents to working detonating device punishmentand that defenders of detonator punishment, manifestly making the same distinction, feature failed to notice that according to the logic of their theory, outstanding punishment is morally obligatory, not just permissible.We suggest, in another(prenominal) words, that on received empirical assumptions, capital punishment may be morally required, not for retri stillive reasons, only if rather to stay fresh the taking of dealy lives. 7 The suggestion wear offs not tho on moral and semi semipolitical debates, but in additi on on constitutional questions. In invalidating the shoemakers last penalty for juveniles, for example, the Supreme hook did not seriously shut away the accident that capital punishment for juveniles may help to foresee the end of innocents, including juvenile innocents. And if our suggestion is correct, it relates to many questions outside of the context of capital punishment. If omissions by the resign are often indistinguishable, in dominion, from sues by the area, and so a wide range of unembellished distresss to actin the context not only of turn and civil law, but of regulatory law as wellshould be peen to beseech serious moral and legal problems. Those who buy up our bloods in favor of the finale penalty may or may not welcome the implications for government action in general.In many situations, ranging from environmental quality to appropriations to highway safety to relief of poverty, our considerations suggest that in demoralize of 7. In so saying, we a re suggesting the possibility that states are obliged to practise the dying penalty option, not that they must inflict that penalty in every exclusive case of a specified severalize consequently we are not attempting to enter into the debate over mandatory expiry sentences, as invalidated in Lockett v. Ohio, 438 U. S. 586 (1978), and Woodson v. North Carolina, 428 U. S. 280 (1976). For relevant give-and- abbreviate, see Martha C.Nussbaum, fair-mindedness and Mercy, 22 PHIL. & PUB. AFF. 83 (1993). 8. Roper v. Simmons, 125 S. Ct. 1183 (2005). Here is the heart of the Courts backchat As for intimidation, it is unclear whether the death penalty has a evidential or even measurable check center on juveniles, as counsel for the petitioner acknowledged at oral argument. . . . The absence of evidence of deterrent effect is of special fill because the same characteristics that father juveniles less culpable than adults suggest as well that juveniles will be less susceptibl e to intimidation. . . To the extent the juvenile death penalty world power have residual deterrent effect, it is worth noting that the punishment of life incarceration without the possibility of parole is itself a severe sanction, in particular for a young individual. Id. at 1196. These are conjectures at best, and they do not draw with the empirical literature of racetrack, that literature does not dispose of the question whether juveniles are deterred by the death penalty. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 06 STANFORD LAW polish Vol. 58703 imaginable empirical findings, government is obliged to provide far more protection than it now does, and it should not be permitted to hide behind unhelpful distinctions between acts and omissions. The foundation for our argument is a authoritative body of juvenile evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one. 9 A leading national discover suggests that ap iece motion obstructs whatsoever 18 murders, on average. 0 If the live evidence is even roughly correcta question to which we shall drive awaythen a refusal to compel capital punishment will efficaciously condemn numerous innocent people to death. States that choose life imprisonment, when they expertness choose capital punishment, are ensuring the deaths of a macroscopical spot of innocent people. 11 On moral desktops, a choice that effectively condemns large come of people to death seems objectionable to say the least.For those who are given over to be skeptical of capital punishment for moral reasonsa root word that includes one of the current authorsthe t await is to consider the possibility that the ill fortune to impose capital punishment is, prima facie and all things considered, a serious moral wrong. Judgments of this sort are often taken to require a controversial commitment to a consequentialist view about the foundations of moral evaluation. One of our booster cable represents, however, is that the choice between consequentialist and deontological approaches to morality is not pivotal here.We suggest that, on certain empirical assumptions, theorists of both stripes might converge on the predilection that capital punishment is morally obligatory. On 9. See, e. g. , Hashem Dezhbakhsh et al. , Does Capital penalization Have a Deterrent nitty-gritty? New Evidence from Postmoratorium jury Data, 5 AM. L. & ECON. REV. 344 (2003) H. Naci Mocan & R. Kaj Gittings, Getting Off Death Row Commuted Sentences and the Deterrent Effect of Capital Punishment, 46 J. L. & ECON. 453, 453 (2003) Joanna M. Shepherd, Deterrence Versus Brutalization Capital Punishments Differing Impacts Among States, 104 MICH. L. REV. 03 (2005) hereinafter Shepherd, Deterrence Versus Brutalization Joanna M. Shepherd, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. jural STUD. 283, 308 (2004) hereinafter Shepherd, Murders of Pa ssion capital of Minnesota R. Zimmerman, Estimates of the Deterrent Effect of Alternative Execution Methods in the United States, 65 AM. J. ECON. & SOC. (forthcoming 2006) hereinafter Zimmerman, Alternative Execution Methods, usable at http//papers. ssrn. com/sol3/papers. cfm? abstract_id=355783 Paul R. Zimmerman, State Executions, Deterrence, and the relative incidence of Murder, 7 J. APPLIED ECON. 63, 163 (2004) hereinafter Zimmerman, State Executions. 10. See Dezhbakhsh et al. , supra bring down 9, at 344. In what follows, we will speak of each execution saving eight-spoteen lives in the United States, on average. We are, of course, suppressing many issues in that formulation, evidently for instructive convenience. For one thing, that statistic is a national average, as we show in divulge IV. For another thing, future research might find that capital punishment has diminishing returns even if the first 100 executions deter 1800 murders, it does not follow that another 100 0 executions will deter another 18,000 murders.We will take these and like qualifications as on a lower floorstood in the discussion that follows. 11. In novel years, the number of murders in the United States has fluctuated between 15,000 and 24,000. FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES tbl. 1 (2003), available at http//www. fbi. gov/ucr/03cius. htm. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 707 consequentialist grounds, the death penalty seems morally obligatory if it is the only or most effective agent of preventing significant numbers of murders much of our discussion will explore this signalise.For this reason, consequentialists should have little difficulty with our arguments. For deontologists, a chargeing is a wrong under most circumstances, and its wrongness does not depend on its consequences or its make on boilers suit well-being. Many deontologists (of course not all) bel ieve that capital punishment counts as a moral wrong. But in the abstract, any deontological injunction against the wrongful infliction of death turns out to be indeterminate on the moral status of capital punishment if the death is requisite to prevent significant numbers of killings.The wordless assumption animating much opposition to capital punishment among self-generated deontologists is that capital punishment counts as an action by the state, eon the refusal to impose it counts as an omission, and that the two are altogether different from the moral pane of view. A related way to put this point is to suggest that capital punishment counts as a killing, speckle the failure to impose capital punishment counts as no such(prenominal)(prenominal) thing and hence is far less problematic on moral grounds. We shall investigate these shoots in approximately occurrence.But we doubt that the distinction between state actions and state omissions can bear the moral weight given t o it by the critics of capital punishment. Whatever its point out value as a moral concept where individuals are concerned, the act/omission distinction misfires in the general setting of government regulation. If government policies fail to protect people against air pollution, occupational hazards, terrorism, or racial discrimination, it is unforesightful to put great moral weight on the idea that the failure to act is a mere omission. No one believes that government can avoid responsibility to protect people against serious dangersfor example, by refusing to execute regulatory statutessimply by contending that such refusals are unproblematic omissions. 12 If state governments impose light penalties on offenders or treat certain offenses (say, domestic violence) as unworthy of tutelage, they should not be able to omit public retribution by contending that they are simply refusing to act.Where government is concerned, failures of protection, by dint of refusals to punish an d deter individual(a) misconduct, cannot be justified by pointing to the distinction between acts and omissions. It has even become common to speak of risk-risk tradeoffs, understood to burn down when regulation of one risk (say, a risk associated with the use of DDT) gives startle to another risk (say, the spread of malaria, against which DDT has been effective). 13 Or enunciate that an air pollutant creates adverse health effects 12.Indeed, agency inaction is oft subject to judicial review. See Ashutosh Bhagwat, Three-Branch Monte, 72 NOTRE DAME L. REV. 157 (1996). 13. See by and large RISK VERSUS RISK TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (John D. whole wheat flour & Jonathan Baert Wiener eds. , 1995) (considering risk-risk tradeoffs on topics such as DDT, the use of estrogen for menopause, and clozapine theory SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 708 STANFORD LAW revue Vol. 58703 ut also has health benefits, as appears to be the case fo r ground- aim ozone. 14 It is implausible to say that, for moral reasons, kindly planners should refuse to take account of such tradeoffs there is general correspondence that whether a particular substance ought to be regulated depends on the boilers suit effect of regulation on human well-being. As an empirical matter, immoral law is pervaded by its own risk-risk tradeoffs. When the deterrent signal works, a failure to impose stringent penalties on certain crimes will increase the number of those crimes.A refusal to impose such penalties is, for that reason, problematic from the moral point of view. It should not be practicable for an officiala governor, for exampleto attempt to escape political retribution for failing to prevent domestic violence or environmental degradation by claiming that he is simply failing to act. The very idea of equal protection of the laws, in its oldest and most literal consciousness, attests to the importance of enforcing the criminal and civil l aw so as to safeguard the potential victims of secret violence. 5 What we are suggesting is that to the extent that capital punishment executes more lives than it extinguishes, the death penalty produces a risk-risk tradeoff of its ownindeed, what we will call a life-life tradeoff. Of course, the presence of a life-life tradeoff does not resolve the capital punishment debate. By itself, the act of execution may be a wrong, in a way that cannot be said of an act of imposing civil or criminal penalties for, say, environmental degradation.But the existence of life-life tradeoffs raises the possibility that for those who oppose killing, a rejection of capital punishment is not necessarily mandated. On the contrary, it may well be morally compelled. At the very least, those who object to capital punishment, and who do so in the name of protecting life, must come to call with the possibility that the failure to inflict capital punishment will fail to protect lifeand must, in our view, justify their position in ship canal that do not rely on question-begging claims about the distinction between state actions and state omissions, or between killing and letting die.We begin, in resolve I, with the particulars. Raising doubts about widely held beliefs based on erstwhile(a) studies or partial information, new-fangled studies suggest that capital punishment may well but lives. One leading study finds that as a national average, each execution deters both(prenominal) eighteen murders. Our question whether capital punishment is morally obligatory is motivated by these findings our central concern is that foregoing any given execution may be identical to condemning both(prenominal) unidentified people to a premature and barbarian death.Of course, social science can perpetually be contend in this contentious do important, and spirited attacks have been made on the recent studies16 hence, we mean to for schizophrenia). 14. See Am. Trucking Assns, Inc. v. EPA, 175 F. 3d 1027, 1051-53 (D. C. Cir. 1999). 15. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1997). 16. See Richard Berk, New Claims About Executions and General Deterrence Deja SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 709 outline, rather than to defend, the relevant evidence here.But we recover that to make progress on the moral issues, it is productive and even necessary to take those findings as given and consider their significance. Those who would like to abolish capital punishment, and who find the social science unconvincing, might find it profitable to entreat whether they would maintain their commitment to abolition if they were firmly persuaded that capital punishment does have a strong deterrent effect. We ask such people to immobilize their empirical doubts in order to investigate the moral issues that we mean to raise here.In Part II, the centerpiece of the Article, we offer a few remarks on mora l foundations and examine some standard objections to capital punishment that might seem plausible even in light of the current findings. We focalization in particular on the view that capital punishment is objectionable because it requires assentient and intentional state action, not merely an omission. The act/omission distinction, we suggest, systematically misfires when applied to government, which is a moral agent with distinctive features.The act/omission distinction may not even be intelligible in the context of government, which always faces a choice among policy regimes, and in that sense cannot help but act. Even if the distinction between acts and omissions can be rendered intelligible in regulatory settings, its moral relevance is obscure. round acts are morally obligatory, while some omissions are morally culpable. If capital punishment has significant deterrent effects, we suggest that for government to omit to impose it is morally blameworthy, even on a deontol ogical account of morality.Deontological accounts typically recognize a consequentialist subvert to baseline prohibitions. If each execution saves an average of eighteen lives, then it is plausible to think that the override is triggered, in turn triggering an obligation to view capital punishment. Once the act/omission distinction is rejected where government is concerned, it becomes clear that the most familiar, and plausible, objections to capital punishment deal with only one side of the ledger the objections fail to take account of the exceedingly domineering deaths that capital punishment may deter.The realm of homicide, as we shall call it, is meet with its own arbitrariness. We consider rule-of-law concerns about the irreversibility of capital punishment and its possibly random or invidious administration, a strict scrutiny principle that capital punishment should not be permitted if other means for producing the same level of deterrence are available, and concerns about slippery slopes. We suggest that while some of these complaints have Vu All over Again? , 2 J. EMPIRICAL LEGAL STUD. 03 (2005) see also Deterrence and the Death Penalty A faultfinding Review of New Evidence Hearings on the Future of Capital Punishment in the State of New York Before the New York State Assemb. rest Comm. on Codes, Assemb. Standing Comm. on Judiciary, and Assemb. Standing Comm. on Correction, 2005 Leg. , 228th Sess. 1-12 (N. Y. 2005) (statement of Jeffrey Fagan, Professor of Law and Pub. Health, Columbia Univ. ), available at www. deathpenaltyinfo. org/FaganTestimony. pdf hereinafter Deterrence and the Death Penalty.For a root to Fagans testimony, see generally Shepherd, Deterrence Versus Brutalization, supra throwaway 9. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 710 STANFORD LAW REVIEW Vol. 58703 merit, they do not count as decisive objections to capital punishment, because they embody a flawed version of the act/omission distinction and gener ally overlook the fact that the moral objections to capital punishment put one over even more strongly to the murders that capital punishment apparently deters.In Part III, we conjecture that various cognitive and social mechanisms, abstracted any claim to moral relevance, may cause many individuals and groups to digest to untenable versions of the distinction between acts and omissions or to discount the lifesaving potential of capital punishment while exaggerating the harms that it causes. An important concern here is a sort of misplaced concreteness, stemming from heuristics such as salience and availability. The single person executed is often more visible nd more salient in public parley than any abstract statistical persons whose murders might be deterred by a single execution. If those people, and their names and faces, were highly visible, we suspect that many of the objections to capital punishment would at least be shaken. As environmentalists have often argued, statist ical persons should not be treated as remote abstractions. 17 The point cumbers for criminal justice no less than for pollution controls. Part IV expands upon the implications of our view and examines some unresolved puzzles.Here we emphasize that we hold no drawing for capital punishment across all contexts or in the abstract. The crucial question is what the facts show in particular domains. We mean to include here a plea not only for continuing evaluatement of the disputed evidence, but also for a disaggregated approach. Future research and dissolving agenting policies would do well to take separate account of various regions and of various classes of offenders and offenses. We also emphasize that our argument is limited to the setting of life-life tradeoffs in which the taking of a life by the state will stifle the number of lives taken overall.We transmit no view about cases in which that condition does not holdfor example, the possibility of capital punishment for serio us offenses other than killing, with rape being the principal historical example, and with rape of children being a currently contend problem. Such cases involve distinctively difficult moral problems that we mean to hold here. A brief conclusion follows. I. EVIDENCE For many years, the deterrent effect of capital punishment was sharply disputed. 18 In the 1970s, Isaac Ehrlich conducted the first multivariate 17. Lisa Heinzerling, The Rights of Statistical People, 24 HARV.ENVTL. L. REV. 189, 189 (2000). 18. comparison, e. g. , Isaac Ehrlich, The Deterrent Effect of Capital Punishment A Question of Life and Death, 65 AM. ECON. REV. 397, 398 (1975) (estimating each execution deters eight murders), with William J. Bowers & Glenn L. Pierce, The fast one of Deterrence in Isaac Ehrlichs Research on Capital Punishment, 85 YALE L. J. 187, 187 (1975) (finding Ehrlichs info and methods unreliable). A good overview is Robert Weisberg, The Death SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9 /2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 711 egression analyses of the death penalty, based on time-series discriminating information from 1933 to 1967, and concluded that each execution deterred as many as eight murders. 19 But subsequent studies raised many questions about Ehrlichs conclusionsby showing, for example, that the deterrent effects of the death penalty would be eliminated if entropy from 1965 through 1969 were eliminated. 20 It would be fair to say that the deterrence theory could not be confirmed by the studies that have been completed in the twenty years after Ehrlich first wrote. 21 More recent evidence, however, has given new life to Ehrlichs hypothesis. 2 A thrill of sophisticated multiple regression studies have exploited a pertly available form of data, so-called decorate data, that uses all information from a set of units (states or counties) and follows that data over an extended period of time. A leading study used county-le vel panel data from 3054 U. S. counties between 1977 and 1996. 23 The authors found that the murder rate is significantly reduced by both death sentences and executions. The most striking finding was that on average, each execution contributes in eighteen fewer murders. 24 Other econometric studies also find a hearty deterrent effect.In two papers, Paul Zimmerman uses state-level panel data from 1978 on fightds to measure the deterrent effect of execution rank and execution methods. He estimates that each execution deters an average of fourteen murders. 25 employ state-level data from 1977 to 1997, H. Naci Mocan and R. Kaj Gittings find that each execution deters five murders on average. 26 They also find that increases in the murder rate vector sum when people are removed from death row Penalty Meets amicable Science Deterrence and Jury Behavior Under New Scrutiny, 1 ANN. REV. L. & SOC. SCI. 151 (2005). 19.See Ehrlich, supra placard 18, at 398 Isaac Ehrlich, Capital Punishme nt and Deterrence Some kick upstairs Thoughts and Additional Evidence, 85 J. POL. ECON. 741 (1977). 20. For this point and an overview of many other criticisms of Ehrlichs conclusions, see Richard O. Lempert, Desert and Deterrence An Assessment of the Moral Bases of the Case for Capital Punishment, 79 MICH. L. REV. 1177 (1981). 21. See id. Weisberg, supra step 18, at 155-57. 22. Even as this evidence was being developed, one of us predicted, perhaps rashly, that the debate would proceed inconclusive for the foreseeable future. See Adrian Vermeule, Interpretive Choice, 75 N.Y. U. L. REV. 74, 100-01 (2000). 23. See Dezhbakhsh et al. , supra note 9, at 359. 24. Id. at 373. 25. Zimmerman, Alternative Execution Methods, supra note 9 Zimmerman, State Executions, supra note 9, at 190. 26. Mocan & Gittings, supra note 9, at 453. Notably, no clear evidence of a deterrent effect from capital punishment emerges from Lawrence Katz et al. , Prison Conditions, Capital Punishment, and Deterren ce, 5 AM. L. & ECON. REV. 318, 330 (2003), which finds that the estimate of deterrence is extremely sensitive to the choice of specification, with the largest estimate paralleling that in Ehrlich, supra note 18.Note, however, that the principal finding in Katz et al. , supra, is that prison deaths do have a strong deterrent effect and a stunningly large onewith each prison death producing a diminution of 30-100 violent crimes and a similar number of property crimes. Id. at 340. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 712 STANFORD LAW REVIEW Vol. 58703 and when death sentences are commuted. 27 A study by Joanna Shepherd, based on data from all states from 1997 to 1999, finds that each death sentence deters 4. 5 murders and that an execution deters 3 additional murders. 8 Her study also investigates the contested question whether executions deter crimes of passion and murders by intimates. Although intuition might suggest that such crimes cannot be deterred, her own finding is clear all categories of murder are deterred by capital punishment. 29 The deterrent effect of the death penalty is also found to be a function of the length of waits on death row, with a murder deterred for every 2. 75 years of reduction in the period before execution. 30 Importantly, this study finds that the deterrent effect of capital punishment protects African-American victims even more than whites. 1 In the period between 1972 and 1976, the Supreme Court produced an effective moratorium on capital punishment, and an extensive unpublished study exploits that fact to estimate the deterrent effect. Using state-level data from 1977 to 1999, the authors make before-and-after comparisons, revolve abouting on the murder rate in each state before and after the death penalty was hang up and reinstated. 32 The authors find a substantial deterrent effect The data prove that murder rates increased immediately after the moratorium was compel and decreased directly after the moratorium was lifted, providing support for the deterrence hypothesis. 33 A recent study offers more refined findings. 34 Disaggregating the data on a state-by-state basis, Joanna Shepherd finds that the nationwide deterrent effect of capital punishment is in all driven by only six statesand that no deterrent effect can be found in the twenty-one other states that have restored capital punishment. 35 What distinguishes the six from the twenty-one? The answer, she contends, lies in the fact that states showing a deterrent effect are executing more people than states that are not. In fact the data show a 27. Mocan & Gittings, supra note 9, at 453, 456. 8. Shepherd, Murders of Passion, supra note 9, at 308. 29. Id. at 305. Shepherd notes Many researchers have argued that some types of murders cannot be deterred they assert that murders commit during arguments or other crime-of-passion moments are not premeditated and therefore undeterrable. My results indicate that this assertio n is wrong the rates of crime-of-passion and murders by intimatescrimes previously believed to be undeterrableall decrease in execution months. Id. 30. Id. at 283. 31. Id. at 308. 32. Hashem Dezhbakhsh & Joanna M.Shepherd, The Deterrent Effect of Capital Punishment Evidence from a Judicial Experiment, at tbls. 3-4 (Am. Law & Economics Assn Working Paper No. 18, 2004), available at http//law. bepress. com/cgi/viewcontent. cgi? article=1017&context=alea (last visited Dec. 1, 2005). 33. Id. at 3-4. 34. Shepherd, Deterrence Versus Brutalization, supra note 9. 35. Id. at 207. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 713 threshold effect deterrence is found in states that had at least nine essence executions between 1977 and 1996.In states below that threshold, no deterrence effect can be found. 36 This finding is intuitively plausible. Unless executions reach a certain level, murderers may act as if the death penal ty is so improbable as not to be worthy of concern. 37 Shepherds main lesson is that once the level of executions reaches a certain level, the deterrent effect of capital punishment is substantial. All in all, the recent evidence of a deterrent effect from capital punishment seems cogent, especially in light of its apparent power and unanimity. 38 But in studies of this kind, it is hard to control for fuddle variables, and honest doubts inevitably remain. Most broadly, skeptics are credibly to question the mechanisms by which capital punishment is said to have a deterrent effect. In the skeptical view, many murderers lack a clear sense of the likeliness and perhaps even the existence of executions in their states further problems for the deterrence claim are introduced by the fact that capital punishment is imposed infrequently and after long delays.Emphasizing the weakness of the deterrent signal, Steven Levitt has suggested that it is hard to believe that alarm of execution would be a driving depict in a lucid criminals calculus in modern America. 39 And, of course, some criminals do not act rationally many murders are committed in a passionate state that does not make for itself to an all-things-considered analysis on the part of perpetrators. More narrowly, it remains accomplishable that the recent findings will be exposed as statistical artifacts or found to rest on flawed econometric methods.Work by Richard Berk, based on his independent review of the state-level panel data from Mocan and Gittings, offers multiple objections to those authors finding of deterrence. 40 For example, Texas executes more people than any other state, and when Texas is removed from the data, the evidence of deterrence is severely weakened. 41 Removal of the apparent outlier states that execute the largest numbers of people seems to eliminate the finding of deterrence 36. Id. at 239-41. 37.Less intuitively, Shepherd finds that in bakers dozen of the states that had ca pital punishment but executed few people, capital punishment actually increased the murder rate. She attributes this puzzling result to what she calls the brutalization effect, by which capital punishment devalues human life and teaches people about the genuineness of vengeance. Id. at 40-41. 38. See Weisberg, supra note 18, at 159. 39. See Steven D. Levitt, intellectual Why Crime Fell in the 1990s Four Factors that apologise the Decline and Six that Do Not, 18 J. ECON. PERSP. 163, 175 (2004). 0. See Berk, supra note 16 Deterrence and the Death Penalty, supra note 16, at 6-12. 41. Berk, supra note 16, at 320. It has also been objected that the studies do not take account of the availability of sentences that involve life without the possibility of parole such sentences might have a deterrent effect equal to or beyond that of capital punishment. See Deterrence and the Death Penalty, supra note 16. A response to Berk can found in Shepherd, Deterrence Versus Brutalization, supra not e 9. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 714STANFORD LAW REVIEW Vol. 58703 altogether. 42 Berk concludes that the findings of Mocan and Gittings are driven by six states with more than five executions each year. Berk, however, proceeds by presenting data in graphic form he offers no regression analyses in support of his criticism. These concerns about the evidence should be taken as useful cautions. At the level of theory, it is plausible that if criminals are fully rational, they should not be deterred by infrequent and much-delayed executions the deterrent signal may well be too weak to affect their behavior.But suppose that like most people, criminals are boundedly rational, assessing probabilities with the aid of heuristics. 43 If executions are highly salient and cognitively available, some prospective murderers will overestimate their likelihood, and will be deterred as a result. Other prospective murderers will not pay much attention to the fact that e xecution is unlikely, focusing instead on the badness of the return (execution) rather than its low probability. 44 Few murderers are likely to assess the deterrent signal by multiplying the harm of execution against its likelihood.If this is so, then the deterrent signal will be larger than might be suggested by the product of that multiplication. Levitts theoretical claim assumes that prospective murderers are more often than not rational in their reaction to the death penalty and its probabilitystanding by itself, a plausible conjecture but no more. As for the recent data, it is true that evidence of deterrence is reduced or eliminated through the removal of Texas and other states in which executions are most common and in which evidence of deterrence is strongest. 5 But removal of those states seems to be an unmatchable way to resolve the contested questions. States having the largest numbers of executions are most likely to deter, and it does not seem to make sense to exclud e those states as outliers. 46 By way of comparison, imagine a study attempting to determine what characteristics of baseball teams most increase the chance of winning the World Series. Imagine also a criticism of the study, parallel to Berks, which complained that data about the New York Yankees should be thrown out, on the ground that the Yankees have won so many times as to be outliers. This would be an odd idea, because empiricists must go where the evidence is in the case of capital punishment, the outliers provide much of the relevant evidence. disengage here Shepherds finding, compatible with the analysis of some skeptics, that the deterrent effect occurs only in states in which there is some threshold 42. Berk, supra note 16, at 320-24 Shepherd, Deterrence Versus Brutalization, supra note 9. 43. On bounded rationality in general, see RICHARD H. THALER, QUASI-RATIONAL ECONOMICS (1991). 44.See Yuval Rottenstreich & Christopher K. Hsee, Money, Kisses, and electric Shocks On t he Affective Psychology of Risk, 12 PSYCHOL. SCI. 185, 188 (2001) Cass R. Sunstein, Probability Neglect Emotions, finish up Cases, and Law, 112 YALE L. J. 61 (2002). 45. See Shepherd, Deterrence Versus Brutalization, supra note 9. 46. Id. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 715 number of executions. 47 But let us suppose, plausibly, that the evidence of deterrence remains inconclusive.Even so, it would not follow that the death penalty as such fails to deter. As Shepherd also finds in her most recent study,48 more frequent executions, carried out in closer propinquity to convictions, are predicted to amplify the deterrent signal for both rational and boundedly rational criminals. We can go further. A degree of doubt, with respect to the current system, need not be taken to suggest that existing evidence is irrelevant for purposes of policy and law.In regulation as a whole, it is common to embrace some ver sion of the preventive principle49the idea that steps should be taken to prevent significant harm even if cause-and-effect relationships remain unclear and even if the risk is not likely to come to fruition. Even if we reject strong versions of the precautional principle,50 it hardly seems sensible that governments should ignore evidence demonstrating a significant possibility that a certain step will save large numbers of innocent lives.For capital punishment, critics often seem to assume that evidence on deterrent effects should be ignored if reasonable questions can be raised about the evidences reliability. But as a general rule, this is implausible. In most contexts, the existence of legitimate questions is hardly an passable reason to ignore evidence of severe harm. If it were, many environmental controls would be in serious jeopardy. 51 We do not mean to suggest that government should commit what many people consider to be, prima facie, a serious moral wrong simply on the b asis of speculation that this action will do some good.But a degree of reasonable doubt need not be taken as capable to doom a form of punishment if there is a significant possibility that it will save large numbers of lives. It is possible that capital punishment saves lives on net, even if it has zero deterrent effect. A life-life tradeoff may arise in some(prenominal) ways. One possibility, the one we focus on here, is that capital punishment deters homicides. Another possibility is that capital punishment has no deterrent effect, but saves lives just 7. See id. 48. Id. 49. For overviews of the precautionary principle and related issues, see INTERPRETING THE PRECAUTIONARY PRINCIPLE (Tim ORiordan & James Cameron eds. , 1994) ARIE TROUWBORST, EVOLUTION AND STATUS OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW (2002). 50. See, e. g. , Julian Morris, Defining the Precautionary Principle, in RETHINKING RISK AND THE PRECAUTIONARY PRINCIPLE (Julian Morris ed. , 2000). 51.Indeed, those skeptical of capital punishment entreat evidence to the effect that capital punishment did not deter, and argue, plausibly, that it would be a mistake to wait for unambiguous evidence before ceasing with a punishment that could not be shown to reduce homicide. See Lempert, supra note 20, at 1222-24. This is a kind of precautionary principle, arguing against the most aggressive forms of punishment if the evidence suggested that they did not deter. We are suggesting the possibility of a mirror-image precautionary principle when the evidence goes the other way. SUNSTEIN & VERMEULE 58 STAN.L. REV. 703 1/9/2006 105105 AM 716 STANFORD LAW REVIEW Vol. 58703 by incapacitating those who would otherwise kill again in the future. 52 Consider those jurisdictions that eschew capital punishment altogether. What sanction can such jurisdictions really guard to those who have already been sentenced to life in prison without parole? Sentences of this sort may take more lives overall by incre asing the number of essentially unpunishable withinprison homicides of guards and fellow inmates. 53 Many murderers are killed in prison even in states that lack the death penalty. 4 And if murderers are eventually paroled into the general population, some of them will kill again. Overall, it is quite possible that the permanent incapacitation of murderers through execution might save lives on net. A finding that capital punishment detersand deterrence is our focus hereis sufficient but not necessary to find a life-life tradeoff. In any event, our goal here is not to reach a final judgment about the evidence. It is to assess capital punishment given the assumption of a substantial deterrent effect.In what follows, therefore, we will stipulate to the validity of the evidence and consider its implications for morality and law. Those who doubt the evidence might ask themselves how they would assess the moral questions if they were ultimately convinced that life-life tradeoffs were act ually involvedas, for example, in hostage situations in which officials are authorized to use deadly force to protect the lives of innocent people. II. CAPITAL PUNISHMENT MORAL FOUNDATIONS AND FOUR OBJECTIONS Assume, then, that capital punishment does save a significant number of innocent lives.On what assumptions should that form of punishment be deemed morally unacceptable, rather than morally obligatory? Why should the deaths of those convicted of capital murder, an overwhelmingly large fraction of whom are guilty in fact, be considered a more serious moral wrong than the deaths of a more numerous group who are certainly innocents? We consider, and ultimately reject, several responses. Our first general contention is that opposition to capital punishment trades on a form of the distinction between acts and omissions.Whatever the general force of that distinction, its screening to government systematically fails, because government is a distinctive kind of moral agent. Our second general contention is that, apart from direct state involvement, the features that make capital punishment morally objectionable to its critics are also features of the very murders that capital punishment deters. The principal difference, on the empirical assumptions we are making, is that in a legal regime without capital punishment far more people die, and those people are innocent of any 2. See Ronald J. Allen & Amy Shavell, Further Reflections on the Guillotine, 95 J. CRIM. L. & CRIMINOLOGY 625, 630-31 (2005). 53. See id. at 630 n. 9. 54. See Katz et al. , supra note 26, at 340. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 717 wrongdoing. No one denies that arbitrariness in the system of capital punishment is a serious problem. But even if the existing system is viewed in its worst light, it involves far less arbitrariness than does the realm of homicide.Let us begin, however, with foundational issues. A. Mor ality and Death On a standard view, it is impossible to come to terms with the moral questions about capital punishment without saying something about the foundations of moral judgments. We will suggest, however, that sectary commitments at the foundational level are for the most part irrelevant to the issues here. If it is stipulated that substantial deterrence exists, both consequentialist and deontological accounts of morality will or should converge upon the view that capital punishment is morally obligatory.Consequentialists will come to that conclusion because capital punishment minimizes killings overall. Deontologists will do so because an opposition to killing is, by itself, indeterminate in the face of life-life tradeoffs because a legal regime with capital punishment has a strong claim to be more reverential of lifes value than does a legal regime lacking capital punishment and because modern deontologists typically subscribe to a consequentialist override or escape hat ch, one that makes otherwise mpermissible actions obligatory if necessary to prevent many deathsprecisely what we are assuming is true of capital punishment. but those deontologists who both insist upon a strong distinction between state actions and state omissions and who reject a consequentialist override will believe the deterrent effect of capital punishment to be irrelevant in principle. suppose that we accept consequentialism and believe that government actions should be evaluated in terms of their effects on aggregate welfare.If we do so, the evidence of deterrence strongly supports a moral argument in favor of the death penaltya form of punishment that, by hypothesis, seems to produce a net gain in overall welfare. Of course, there are many complications here for example, the welfare of many people might increase as a result of knowing that capital punishment exists, and the welfare of many other people might decrease for the same reason. A full consequentialist calculus w ould require a more elaborate assessment than we aim to provide here.The only point is that if capital punishment produces significantly fewer deaths on balance, there should be a strong consequentialist presumption on its behalf any argument against capital punishment, on consequentialist grounds, will face a steep emerging struggle. To be sure, it is also possible to imagine forms of consequentialism that reject welfarism as implausibly reductionist and see misdemeanours of rights as part of the set of consequences that must be taken into account in deciding what to SUNSTEIN & VERMEULE 58 STAN. L. REV. 03 1/9/2006 105105 AM 718 STANFORD LAW REVIEW Vol. 58703 do. 55 For some such consequentialists, killings are, under run-of-the-mill circumstances, a violation of rights, and this point is highly relevant to any judgment about killings. But even if the point is accepted, capital punishment may be required, not prohibited, on consequentialist grounds, simply because and to the ext ent that it minimizes rights violations. Private murders also violate rights, and the rights-respecting consequentialist must take those actions into account.But imagine that we are deontologists, believing that actions by government and others should not be evaluated in consequentialist terms how can capital punishment be morally permissible, let alone obligatory? For some deontologists, capital punishment is obligatory for moral reasons alone. 56 But suppose, as other deontologists believe, that under ordinary circumstances, the states killing of a human being is a wrong and that its wrongness does not depend on an inquiry into whether the action produces a net increase in welfare.For many critics of capital punishment, a deontological intuition is central evidence of deterrence is irrelevant because moral wrongdoing by the state is not justified even if it can be defended on utilitarian grounds. Compare a situation in which a state seeks to kill an innocent person, knowing that t he execution will prevent a number of private killings deontologists believe that the unjustified execution cannot be supported even if the state is secure in its knowledge of the executions beneficial effects. Of course, it is contentious to claim that capital punishment is a moral wrong.But if it is, then significant deterrence might be entirely beside the point. It is simply true that many intuitive objections to capital punishment rely on a belief of this kind just as execution of an innocent person is a moral wrong, one that cannot be justified on consequentialist grounds, so too the execution of a guilty person is a moral wrong, whatever the evidence shows. Despite all this, our claims here do not depend on accepting consequentialism or rejecting the deontological objection to evaluating unjustified killings in consequentialist terms.The argument is instead that by itself and in the abstract, this objection is indeterminate on the moral status of capital punishment. To the ext ent possible, we intend to bracket the most fundamental questions and to suggest that whatever ones view of the foundations of morality, the objection to the death penalty is difficult to set about under the empirical assumptions that we have traced. Taken in its most sympathetic light, a deontological objection to capital punishment is unconvincing if states that refuse to impose the death penalty produce, by that 55.Amartya Sen, Rights and Agency, 11 PHIL. & PUB. AFF. 3, 15-19 (1982). 56. See Pojman, supra note 4, at 58-59. As noted below, the case of Israel is a good test for such deontologists Israel does not impose the death penalty, in part on the ground that executions of terrorists would likely increase terrorism. Do deontologists committed to capital punishment believe that Israel is acting immorally? In our view, they ought not to do so, at least if the empirical assumption is right and if the protection of lives is what morality requires. SUNSTEIN & VERMEULE 58 STAN.L. R EV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 719 very refusal, significant numbers of additional deaths. Recall the realm of homicide for deontologists who emphasize lifes value and object to the death penalty, the problem is acute if the refusal to impose that penalty predictably leads to a significant number of additional murders. In a hostage situation, police officers are permitted to kill (execute) those who have taken hostages if this step is reasonably deemed necessary to save those who have been taken hostage.If the evidence of deterrence is convincing, why is capital punishment so different in principle? Of course, these points might be refractory to those who believe that execution of a guilty person is morally homogeneous to execution of an innocent person and not properly subject to a recognition of life-life tradeoffs. We will explore this position in more detail below. And we could envision a form of deontology that refuses any exe rcise in accretionone that would refuse to authorize, or compel, a violation of rights even if the violation is necessary to prevent a significantly larger number of rights violations.But most modern deontologists reject this position, instead admitting a consequentialist override to baseline deontological prohibitions. 57 Although the threshold at which the consequentialist override is triggered varies with different accounts, we suggest below that if each execution deters some eighteen murders, the override is plausibly triggered. To distill these points, the only deontological accounts that are inconsistent with our argument are those that both (1) embrace a distinction between state actions and state omissions and (2) reject a consequentialist override.To those who subscribe to this tortuous of views, and who consider capital punishment a violation of rights, our argument will not be convincing. In the end, however, we believe that it is difficult to sustain the set of moral a ssumptions that would bar capital punishment if it is the best means of preventing significant numbers of innocent deaths. Indeed, we believe that many of those who think that they hold those assumptions are motivated by other considerationsespecially a failure to give full weight to statistical liveson which we focus in Part III. B.Acts and Omissions A natural response to our basic concern would invoke the widespread intuition that capital punishment involves intentional state action, while the failure to deter private murders is merely an omission by the state. In our view, this appealing and intuitive line of argument goes rather badly wrong. The critics of capital punishment have been led astray by uncritically applying the act/omission distinction to a regulatory setting. Their position condemns the active infliction of death by governments but does not condemn the inactive exertion of death that comes from the refusal to maintain a system 57.For an overview, see Larry Alexand er, Deontology at the Threshold, 37 SAN DIEGO L. REV. 893, 898-901 (2000). SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 720 STANFORD LAW REVIEW Vol. 58703 of capital punishment. The basic problem is that even if this selective condemnation can be justified at the level of individual behavior, it is difficult to defend for governments. 58 A great deal of work has to be done to explain why inactive, but causative, government closings should not be part of the moral calculus.Suppose that we endorse the deontological position that it is wrong to take human lives, even if overall welfare is promoted by taking them. Why does the system of capital punishment violate that position, if the failure to impose capital punishment also takes lives? Perhaps our argument about unjustified selectivity is screen to morally relevant factors that condemn capital punishment and that buttress the act/omission distinction in this context. There are two possible points here, one involving intention and the other involving causation.First, a government (acting through agents) that engages in capital punishment intends to take lives it seeks to kill. A government that does not engage in capital punishment, and therefore provides less deterrence, does not intend to kill. The deaths that result are the unintended and unsought byproduct of an effort to respect life. sure it might be saidthis is a morally relevant difference. Second, a government that inflicts capital punishment ensures a simple and direct causal chain between its own behavior and the taking of human lives.When a government rejects capital punishment, the causal chain is much more complex the taking of human lives is an indirect consequence of the governments decision, one that is mediated by the actions of a murderer. The government authorizes its agents to inflict capital punishment, but it does not authorize private parties to murder indeed, it forbids murder. Surely that is a morally relevant differe nce, too. We will begin, in Part II. B. 1, with questions about whether the act/omission distinction is conceptually intelligible in regulatory settings.Here the suggestion is that there just is no way to speak or think coherently about government actions as opposed to government omissions, because government cannot help but act, in some way or another, when choosing how individuals are to be regulated. In Part II. B. 2, we suggest that the distinction between government acts and omissions, even if conceptually coherent, is not morally relevant to the question of capital punishment. Some governmental actions are morally obligatory, and some governmental omissions are blameworthy.In this setting, we suggest, government is morally obligated to adopt capital punishment and morally at fault if it declines to do so. 1. Is the act/omission distinction coherent with respect to government? In our view, any effort to distinguish between acts and omissions goes 58. Compare debates over going to war Some pacifists insist, correctly, that acts of war will result in the loss of life, including civilian life. But a refusal to go to war will often result in the loss of life, including civilian life.SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 721 wrong by overlooking the distinctive features of government as a moral agent. If correct, this point has broad implications for criminal and civil law. Whatever the general status of the act/omission distinction as a matter of moral philosophy,59 the distinction is least impressive when applied to government, because the most plausible underlying considerations do not apply to official actors. 0 The most fundamental point is that, unlike individuals, governments always and necessarily face a choice between or among possible policies for regulating third parties. The distinction between acts and omissions may not be intelligible in this context, and even if it is, t he distinction does not make a morally relevant difference. Most generally, government is in the business of creating permissions and prohibitions. When it explicitly or implicitly authorizes private action, it is not omitting to do anything or refusing to act. 1 Moreover, the distinction between authorized and unauthorized private actionfor example, private killing becomes obscure when the government formally forbids private action but chooses a set of policy instruments that do not adequately or fully discourage it. To be sure, a system of punishments that only derelict deters homicide, relative to other feasible punishments, does not quite authorize homicide, but that system is not properly characterized as an omission, and little turns on whether it can be so characterized.Suppose, for example, that government fails to characterize certain actionssay, sexual tormentas tortious or violative of civil rights law and that it therefore permits employers to harass employees as they choose or to discharge employees for failing to take to sexual harassment. It would be unhelpful to characterize the result as a product of governmental inaction. If employers are permitted to discharge employees for refusing to submit to sexual harassment, it is because the law is allocating certain entitlements to employers rather than employees. Or consider the context of ordinary torts.When householder B sues Factory A over air pollution, a decision not to rule for Homeowner B is not a form of inaction it is the allocation to Factory A of a property right to pollute. In such cases, an apparent government omission is an action simply because it is an allocation of legal rights. Any decision that allocates such rights, by creating entitlements 59. For discussion of the philosophical controversy over acts and omissions, see generally RONALD DWORKIN, LIFES DOMINION AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM (1993) Frances M.Kamm, Abortion and the cherish of L ife A Discussion of Lifes Dominion, 95 COLUM. L. REV. clx (1995) (reviewing DWORKIN, supra) Tom Stacy, Acts, Omissions, and the Necessity of Killing Innocents, 29 AM. J. CRIM. L. 481 (2002). 60. Here we proceed in the spirit of Robert Goodin by treating government as a distinctive sort of moral agen